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Holland & Knight  Assists Client in Acquisition of MetroSouth Medical Center in Blue Island, Illinois

CHICAGO – A team of Holland & Knight attorneys, led by Chicago Partner Anne Murphy, today completed a transaction in which client MSMC Investors LLC acquired St. Francis Hospital and Health Center from SSM Health Care. The historic 410-bed hospital, founded in 1905, was slated for closure after earlier efforts to find a buyer were unsuccessful. The acquisition was successfully completed on an unusually aggressive timetable. The hospital is the largest employer in Blue Island, and is known for its high quality service and excellence in cardiac care.

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Holland & Knight's National Media and Communications Team Achieves Significant Victory in Groundbreaking Defamation Lawsuit

WASHINGTON, D.C. – Holland & Knight's national Media and Communications team celebrated a significant victory recently in the California Court of Appeal, which vacated a trial court order compelling the deposition of a journalist being sued for libel. The ruling clears the way for the dismissal of the underlying libel lawsuit and the recovery of defense fees.

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Environment
Newsletter - Third Quarter 2006
 
In this Issue...
Endangered Species Update: Delisting the Bald Eagle
 
 July 25, 2006
 

The United States Fish and Wildlife Service (FWS) has proposed the removal of the bald eagle in the lower 48 states from the list of endangered and threatened wildlife under the Endangered Species Act (ESA). 71 Fed. Reg. 8238 (Feb. 16, 2006). In anticipation of the bald eagle delisting, the FWS is simultaneously proposing to enhance the protection of the bald eagle under the less well-known Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668-668d. Should the bald eagle become delisted under the ESA, the primary law protecting bald eagles will be the BGEPA. Similar in some respects to the ESA, BGEPA prohibits the “take” of a bald eagle. However, unlike the ESA, the statutory definition of “take” under the BGEPA includes “disturb” which the FWS now proposes to define. 71 Fed. Reg. 8205 (Feb. 16, 2006). Absent the legal regime of the ESA, the FWS is also providing new guidance to the public who plan activities in the vicinity of bald eagles by developing draft National Bald Eagle Management Guidelines (Guidelines) pursuant to the new definition of “disturb” under the BGEPA. 71 Fed. Reg. 8309 (Feb. 16, 2006). The comment period on all three of these proposed federal actions closed on June 19, 2006.

If asked, most in the regulated community fully support the delisting of the bald eagle. Having recovered from near extinction, its recovery is celebrated and represents an important milestone under the ESA. However, the combined impact of the proposed delisting of the bald eagle with the new definition of “disturb,” and the Guidelines results in a problematic legal situation where protection of the bald eagle will be greater under the BGEPA than under the ESA. This outcome is at odds with common sense of delisting the bald eagle, but also contradicts the statutory purpose of the BGEPA.

The definition of “disturb” and the Guidelines impose greater limits on activities that may occur near a bald eagle, and lack a permitting system for authorized “takes” of the bald eagle associated with land management or development. As currently worded, the definition of “disturb” is overly broad and applies not only to the protection of individual bald eagles but also to bald eagle habitat. For example, the proposed definition of “disturb” under the BGEPA includes “nest abandonment” as a “take.” This concept of “nest abandonment” incorporates habitat modification as if it were drafted to comport with the law under the ESA. Protection of habitat, and the insulation of the bald eagle from all human activities, however, clearly departs from the statutory intent of the BGEPA. As the legislative history indicates, the BGEPA was enacted to protect the bald eagle from direct acts of “wanton destruction” of individual eagles. The proposed definition of “disturb” therefore exceeds the scope of the BGEPA.

The draft Guidelines associated with the proposed “disturb” definition will greatly impact land managers and landowners because the Guidelines impose strict limits on activities that may occur in the vicinity of a bald eagle. For example, the Guidelines prohibit any building within 660 feet of a bald eagle nest tree. Without any type of exception or permit authorization to build within a 660-foot buffer zone of a bald eagle nest, the FWS has created a more stringent regulatory regime under the BGEPA than under the ESA.

To address these problems with the proposed rules, the FWS will need to reevaluate and rewrite the proposed definition of “disturb” as well as revisit key components of the Guidelines. The definition and the Guidelines must reflect the statutory intent of the BGEPA, not the ESA. Depending on the extent to which the FWS undertakes the necessary revisions, these proposed rules are certain to create considerable debate regarding the protection afforded to the bald eagle under the BGEPA – and potential litigation.

Holland & Knight submitted comments on all three of the above mentioned proposed rules on June 19, 2006.

For more information, e-mail Julia A. Jones at julia.jones@hklaw.com  or call toll free, 1-888-688-8500.